Environmental Reforms and the Need of Separate Environment Courts In India

ENVIRONMENTAL JURISPRUDENCE In India environmental law has seen considerable development in the last two decades. Most of the principles under which environmental law works in India come within this period. The development of the laws in this area has seen a considerable share of initiative by the Indian judiciary, particularly the higher judiciary, consisting of the Supreme Court of India, and the High Courts of the States. The role of the administration, although a critical factor in the success of any environmental management programme, has seen its share of problems of scale and definition. The essence of the existing law relating to the environment has developed through legislative and judicial initiative1. Today, most discussions on environmentalism in our country begin with the Stockholm Conference (1972). But, some ancient texts tell us that our society paid more attention to protecting the environment than we can imagine. These texts tell us that it was the dharma of each individual in society to protect Nature, so much so that people worshipped the objects of Nature. Trees, water, land and animals had considerable importance in our ancient texts; and the Manusmriti prescribed different punishments for causing injury to plants. From this, what comes in front of us is that environmental management and control of pollution was not limited only to an individual or a group, but society as a whole accepted its duty to protect the environment. The definition of environment in India is more anthropocentric and broad, it includes not only sustainable development but also air and water pollution, preservation of our forests and wildlife, noise pollution and even the protection of our ancient monuments, which are undergoing severe stress due to urbanization and consequent environmental pollution. Community resources such as tanks, ponds, etc. have now been articulated by the Supreme Court for inclusion in the concept of environment, and why should it not be so, considering they all affect the quality and enjoyment of our life1. Thus it is clearly come out from all of these aspects that concern for environment is not a new concept in India but still it demands more vigilance in this area for the development of environmental jurisprudence and justice. Our constitution has certain provision for environment protection and developments which were discuss below.
1

Hinch Lal Tiwari v. Kamala Devi, (2001) 6 SCC 496

Development of Environmental Jurisprudence and Justice Environmental Jurisprudence in India made a beginning in the mid-seventies when Parliament enacted the Water (Prevention and Control of Pollution) Act, 1974. But soon, there was a quantum leap with the amendment of our Constitution in 1976 and incorporation of Article 48-A2 in the Directive Principles of State Policy and Article 51A (g)3 in the Fundamental Duties of every citizen of India. Both these Articles unequivocally provide for protection and improvement of the environment. Inevitably, Parliament enacted the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986. With this core group of three enactments, a modest beginning was made by Parliament. Unfortunately, soft laws were enacted (and they continue to remain so) at a time when strong legislation was critical for environmental conservation. Around 1980, the Indian legal system, particularly the field of environmental law, underwent a drastic change in terms of discarding its moribund approach and instead, charting out new horizons of social justice. The Supreme Court appreciated the necessity of sternness in environmental issues and seized the opportunity in Municipal Council, Ratlam4 in this case residents of Ratlam filed a complaint under Section 133 of the Criminal Procedure Code alleging that the Municipality had failed to prevent the discharge from the nearby alcohol plant of malodorous fluids into the public street and provide sanitary facilities on the roads. The Municipal Council approached the Supreme Court and one of the key questions raised was whether by affirmative action a court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost. The Supreme Court directed the Municipality to follow the statutory duties and stop the effluents from the Alcohol plant from flowing into the Nala or street. It was held by the Supreme Court that: Decency and dignity are non-negotiable facets of human rights and are a first charge on local self-governing bodies.

Protection and improvement of environment and safeguarding of forests and wild life. The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
3

Fundamental duties It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
4

Municipal Council, Ratlam v. Shri Vardhichand and others, (1980) 4 SCC 162

Having given its raison d'etre for taking a proactive approach in matters pertaining to the general environment, the Supreme Court later entertained a letter petition from an NGO called the Rural Litigation and Entitlement Kendra. This initiated the first case that directly dealt and concerned itself with the environment and ecological balance. In a series of decisions5 the Supreme Court considered the complaint of the petitioner regarding illegal and unauthorized limestone quarrying and excavation of limestone deposits which apparently affected the ecology of the area, caused environmental disturbances which damaged the perennial water springs in the Musoorie Hills, disturbed the natural water system and the supply of water both for drinking as well as for irrigation. On the recommendation of the bhargava committee, the Supreme Court ordered that for the most dangerous mines and mines falling within the Mussoorie city be denied renewal of lease and their operation be stopped. It was also pronounced by the Court that preservation of environment and keeping the ecological balance unaffected is a task which not only the Governments but also every citizen must undertake as it is a social obligation and fundamental duty of all citizens under Article 51-A (g) of the Constitution. The Supreme Court was called upon, under these circumstances and in the absence of any legal framework or any precedent, to perform a creative but delicate exercise and come out with novel solutions and ideas to tackle the crisis. In Delhi on 4th and 6th December 1985 There was a leak of Oleum Gas from the factory premises of Shriram Foods and Fertilizer Industries. In this case Supreme Court of India enunciating new principle of an absolute and non-delegable duty to the community6. The gas leak affected a large number of persons and one lawyer practicing in the District Courts in Delhi died. Memories of the Bhopal Gas Disaster that had occurred a year earlier were instantly revived. An activist lawyer immediately initiated proceedings in the Supreme Court bringing out the problem caused by the leakage of oleum gas. The Supreme Court appointed a team of experts to look into these recommendations which were given by Manmohan Singh Committee. The team reported that the recommendations of the Manmohan Singh

Rural Litigation and Entitlement Kendra v. State of U.P. (1985) 2 SCC 431, (1985) 3 SCC 614, (1986)

Supp SCC 517, (1987) Supp SCC 487, (1989) Supp 1 SCC 504, (1989) Supp 1 SCC 537, (1989) Supp 2 SCC 384 and (1991) 3 SCC 347
6

M.C. Mehta v. Union of India, (1986) 2 SCC 176, (1986) 2 SCC 325 and (1987) 1 SCC 395

Committee were being complied with. However, this Expert Committee also pointed out various inadequacies in the plant and opined that it was not possible to eliminate hazards to the public so long as the plant remained in its present location in Delhi. In view of the conflicting reports received by it, the Supreme Court appointed a Committee of Experts called the Nilay Chaudhry Committee. A consideration of the reports of all these committees showed that they were unanimous in concluding that the element of risk to workmen and the public could only be minimized, but not totally eliminated. In this background, the Supreme Court suggested that the Government evolve a National Policy for the location of toxic and hazardous industries and that it should set up an independent centre with professionally competent and public-spirited experts to provide scientific and technological inputs. The reason for this was that the Supreme Court found it difficult to get proper advice and expertise to enable it to arrive at a correct decision. The Supreme Court also recommended the setting up of Environmental Courts to deal with situations of this kind. Chief Justice Bhagwati showed his deep concern for the safety of the people of Delhi from the leakage of the hazardous substance. J. bhagwati held: We can only hope to reduce the element of hazard or risk to the community by taking all necessary steps for locating such industries in a manner which would pose least risk of danger to the community and maximising safety requirements in such industries. The importance of this case lies in the conclusion arrived at by the Supreme Court that an enterprise engaged in a hazardous or inherently dangerous industry which poses a threat to the health and safety of its workmen and the residents of nearby areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of its activity which is undertaken7. If any harm does result, then the enterprise is absolutely liable to compensate for such harm and it is no answer to say that it had taken all reasonable care or that the harm occurred without any negligence on its part. In other words, the Supreme Court evolved a principle of absolute liability and did not accept any of the exceptions in such a case as mentioned in Rylands v. Fletcher8 The most characteristic feature of the Indian environmental law is the important role played by the public interest litigation .The majority of the environment cases in India since 1985 have been brought before the court as writ petitions, normally by individuals
7

Satish C. Shastri, Environmental Law in India Second Edition, Eastern Book Company 2005 (1868) LR 3 HL 330

acting on pro bono basis9.The public interest litigation is as a result of the relaxation of the locus standi rules The judiciary, in their quest for innovate solutions to environmental matters within the framework of public interest litigation, looked to constitutional provisions to provide the court with the necessary jurisdiction to address specific issues. But the fundamental rights part of the constitution of India does not have any specific mention of the environmental matters. Here the Supreme Court played a pivotal role. The Supreme Court, in its interpretation of Article 21, has facilitated the emergence of the environmental jurisprudence in India. Furthermore, Article 142 afforded the Supreme Court considerable power to mould its decisions in order that complete justice could be done. As the Supreme Court is the final authority as far as matters of constitutional interpretation are concerned, it assumes a sort of primal position in the Indian environmental legal system. For example, the fundamental right contained in Article 2110 is often cited as the violated right, albeit in a variety of ways. In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi,11 Bhagwati, J., speaking for the Supreme Court, stated that: We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing, shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. In Subhash Kumar v. State of Bihar12, the Court observed that: The right to live is a fundamental right under Article 21 of the Constitution, and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of the Constitution The Supreme Court, in its interpretation of Article 21, has facilitated the emergence of an
9

See Soli.J.Sorabjee(Ed),Law and Justice An anthology, Universal Law Publishing Company,New Delhi(2003) p.345

10

Article 21: No person shall be deprived of his life or personal liberty except according to procedure established by law.
11

AIR 1981 SC 746 AIR 1991 SC 420.

12

environmental

jurisprudence in India, while also strengthening human rights

jurisprudence. There are numerous decisions wherein the right to a clean environment, drinking water, a pollution-free atmosphere, etc. have been given the status of inalienable human rights and, therefore, fundamental rights of Indian citizens. In M.K. Sharma v. Bharat Electric Employees Union13, the Court directed the Bharat Electric Company to comply with safety rules strictly to prevent hardship to the employees ensuing from harmful X-ray radiation. The Court did so under the ambit of Article 21, justifying the specific order on the reason that the radiation affected the life and liberty of the employees.14 In Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh15, the Supreme Court based its five comprehensive interim orders on the judicial understanding that environmental rights were to be implied into the scope of Article 21. Thus, expanding the scope and ambit of Article 21 to cover in it the rights which are not expressly enumerated, the Supreme Court has interpreted the word life to cover in it all aspects of life which go to make a mans life meaningful, complete and worth living. It will also cover his tradition, culture, heritage and health

INTRODUCTION TO THE NEED OF SEPARATE ENVIRONMENT COURT A great Judge emphasized the imperative issue of environment said that he placed Government above big business, individual liberty above Government and environment above all.16 Such is the importance of Environmental Courts as envisaged by the Supreme Court. Under tons of various cases in courts in India it is of utmost importance to treat environmental cases. Considering the fact that the every day of pendency of the case means greater loss to the ecology. Hence we are of the opinion that in order to deal with this anomaly the constitution of specialized environmental courts is very essential. In the Judgment of the Supreme Court of India in A.P. Pollution Control Board vs.
13

1987 (1) SCALE 1049 For a discussion of the widening scope of fundamental rights, see Maneka Gandhi v. Union of India, AIR

14

1978 SC 597
15 16

AIR 1985 SC 652 Tarun v. Union of India (AIR 1992 SC 514)

M.V. Nayudu17, the Court referred to the need for establishing Environmental Courts which would have the benefit of expert advice from environmental scientists/technically qualified persons, as part of the judicial process, after an elaborate discussion of the views of jurists in various countries. In the subsequent follow-up judgment in A.P. Pollution Control Board vs. M.V. Nayudu18, the Supreme Court, referred to the serious differences in the constitution of appellate authorities under plenary as well as delegated legislation and pointed out that except in one State where the appellate authority was manned by a retired High Court Judge, in other States they were manned only by bureaucrats. These appellate authorities were not having either judicial or environment back-up on the Bench. The need for Environmental Courts were advocated in two earlier judgments also. One was M.C. Mehta v. Union of India19 where the Supreme Court said that in as much as environment cases involve assessment of scientific data, it was desirable to set up environment courts on a regional basis with a professional Judge and two experts, keeping in view the expertise required for such adjudication. There should be an appeal to the Supreme Court from the decision of the environment court. Again in the judgment of Indian Council for Enviro- Legal Action v. Union of India20 in which the Supreme Court observed that Environmental Courts having civil and criminal jurisdiction must be established to deal with the environmental issues in a speedy manner. It is important to note here that the National Environmental Appellate Authority constituted under the National Environmental Appellate Authority Act, 1997, for the limited purpose of providing a forum to review the administrative decisions on Environment Impact Assessment, had very little work. It has to be noted that since the year 2000, no Judicial Member has been appointed. So far as the National Environmental Tribunal Act, 1995 is concerned, the legislation has yet to be notified despite the expiry of eight years. Since it was enacted by Parliament, the Tribunal under the Act is yet to be constituted. Thus, these two Tribunals are non-functional and remain only on paper. In view of the observations of the Supreme Court in the above said judgments, and having regard to the inadequacies of the existing appellate authorities, - which neither contain judges nor have the assistance of experts - and their limited jurisdiction. There
17

1999(2) SCC 718 2001(2) SCC 62 1986(2) SCC 176 at page 202 1996(3) SCC 212 at p. 252

18

19

20

arises a need to constitute specialized environment courts and should consist of judicial members assisted by technical experts. The court should be located along with all the other High Courts with a higher Appellate Authority. The Environment Court should exercise original as well as appellate jurisdiction. It should be able to grant all orders which a Civil Court could grant, including the grant of compensation as visualized by the National Environmental Tribunal Act, 1995. Access to justice, particularly, in matters relating to environment, is an essential facet of Article 21 of the Constitution of India.

UNCERTAINTY OF SCIENCE AND PROBLEMS OF ENVIRONMENTAL COURTS Although considerable progress has been made by science in areas concerning environment where the data play a crucial role, results of experiments conducted by scientific institutions have remained tentative. The results are accurate in proportion to the accuracy of data and to the extent that experiment by use of technology has been able to eliminate all chances of inaccurate conclusions. Uncertainty becomes a problem when scientific knowledge is institutionalized in policymaking or used as a basis for decision-making by agencies and Courts. Scientists may refine, modify or discard variables or models when more information is available: however, agencies and courts must make choices based on existing scientific knowledge. In addition, agency decision-making evidence is generally presented in a scientific form that cannot be easily tested. Therefore, inadequacies in the record due to uncertainty or insufficient knowledge may not be properly considered.21 From the above survey of views, it is quite clear that the opinions as to science which may be placed before the Court keep the Judge always guessing whether to accept the fears expressed by an affected party or to accept the assurances given by a polluter. In Vincent v Union of India22 which involved the banning of certain drugs the court observed that the court was in a dilemma as to consider the view of the petitioners or the assurances of the polluter. The Court felt that once the experts had approved or
21

Charmian Barton: The Status of the Precautionary Principle in Australia: (Vol 22, Harvard Environmental Law Rev. p 509 at pp 510-511 (1998).

22

AIR 1987 SC 990

disapproved the drugs, the Court will not go into the correctness of their decision. The Supreme Court made an effort to refer the issues to an independent committee of experts. in Dr. Shivrao v. Union of Indai23(Irish Butter case) and relied on the reports of the three expert committees formed by the courts. The Court proceeded to have the claims of the party tested by experts. This case involved intricate questions of law of as to whether the setting up of industries would lead to environmental pollution. The industry filed a report of an expert which was accepted by the appellate authority constituted under section 28 of the Water Act, 1974 manned by a retired High Court Judge. The learned Judge, basing his decision on the opinion of a single scientist which was produced by the industry, came to the conclusion that if the industry became operational, it would not pose any hazard to the drinking water. This decision was affirmed by the High Court in writ jurisdiction under Art 226 of the Constitution of India. The High Court too simply went by the opinion of the expert scientist which was produced by the industry. But the Supreme Court felt that the opinion of the scientist was not tested or scrutinized by any expert body and required it to be thoroughly examined. The Supreme Court sought expert advice from the National Environmental Appellate Authority (NEAA). The NEAA basing its report on field investigations, hydrogeological studies, geophysical investigations, electric resistivity investigation, magnetic survey and tracer studies came to the conclusion that the industry would result in environmental pollution. The precautionary principle clearly applied here. Because the Appellate Authority and the High Court did not have the benefit of the opinion of any scientific bodies to test the correctness of the report of the single scientist whose report alone was there available to the appellate authority and the High Court, the decision went in favour of the Industry. But, as the Supreme Court had the benefit of the Reports of these institutions, it could arrive at a different conclusion. Technical and scientific problems today arise in a variety of ways and at various stages before the Courts. Today the need arises for sustainable development. The courts have to deal with myriad issues ranging from the taxes to be paid to the compensation to the workmen to the pollution being caused. The Courts must therefore be able to perform a balancing task. That cannot be done effectively, unless the Court gets judicial as well as scientific inputs. The Courts cannot simply close down industries based on the evidence produced by the industry concerned. These problems which are like under-currents, should also be taken care of by the proposed Environmental Court.
23

AIR 1988 SC 953

It is true that the High Court and Supreme Court have been taking up these and other complex environmental issues and deciding them. But, though they are judicial bodies, they do not have an independent statutory panel of environmental scientists to help and advise them on a permanent basis. They are prone to apply principles like the Wednesbury Principle24 and refuse to go into the merits. They do not also make spot inspections nor receive oral evidence to see for themselves the facts as they exist on ground. On the other hand, if Environmental Courts are established in each State, these Courts can make spot inspections and receive oral evidence. They can receive independent advice on scientific matters by a panel of scientists. PIL in matters of environment can be refused to be entertained in the same manner as consumer related writs have been refused to be entertained consistently by the High Courts for the Consumer Courts under the Consumer Protection Act, 1986. We have also the example of special environmental courts in Australia, New Zealand and in some other countries and these are manned by Judges and expert commissioners. The Royal Commission in UK is also of the view that if environmental courts are established, the High Courts may refuse to entertain applications for judicial review on the ground that there is an effective alternative remedy before these Courts. The above judgments of the Supreme Court of India will show the wide range of cases relating to environment which came to be decided by the said Court from time to time. The Court has been and is still monitoring a number of cases. It will be noted that the Court constantly referred environmental issues to experts, and the Court has been framing schemes, issuing directions and continuously monitoring them. Some of these judgments of the Supreme Court were given in original writ petitions filed under Art. 32 while the others were decided in appeals filed under Art 136 against judgments of the High Courts rendered in writ petitions filed under Art 226. These cases have added tremendous burden on the High Courts and the Supreme Court. The idea for the formation of Environmental Courts is primarily intended to lessen this burden, as already stated. But that as it may, the Supreme Court has, in the various cases referred to above, laid down the basic foundation for environmental jurisprudence in the country.

24

The Wednesbury principles of reasonableness are used to determine whether an agency has acted outside the scope of its delegated administrative powers

10

ENVIRONMENTAL COURTS OR APPELATE ENVIRONMETAL BODIES IN INDIA AS AT PRESENT Whether the matter is one of civil nature or criminal nature, once it is taken cognizance by any Court subordinate to the High Court, it will be dealt with by the said civil or criminal court along with the other cases before it and environmental cases are not normally given any priority in the matter of disposal. Of course, if the issue comes before the High Court or the Supreme Court under writ jurisdiction whether the matter is one brought by the affected party or parties or in a Public Interest litigation, these Courts take up these matters faster but the cases are not taken up day by day as may be done by an Environmental Court dealing exclusively with such cases. The underlying message here intended is that there is delay in their disposal as compared to the time within which any special Environmental Court dealing only with issues relating to environment could have taken. It cannot be disputed that environmental matters have to be taken up early, monitored from time to time and be finally disposed of by a procedure quicker than that obtaining now. Further, the Courts today lack independent expert advice on environmental matters by a statutory panel attached to the Court and depend mostly on the expert evidence that may be adduced by the parties. The need for experts in environment to be associated with the Courts dealing with these cases has already been pointed put in the previous chapters.

Special Acts and appellate powers: Several of the special statutes e.g. Environment (Protection) Act, 1986, Water (P&CP) Act, 1974, Air (P&CP) Act, 1981, delegate power to the State Governments/Union Government to designate appellate authorities. The appeals lie generally, as can be seen from the above paragraphs, to various officers of government or Departments of Government. Except in one or two cases, the appeals do not lie to a judicial body comprising a judicial officer. In no case does the appellate authority have the assistance of experts in the field of environment. In the light of the discussion in the earlier chapters and experience of establishment of Environmental Courts abroad, the Law Commission is of the opinion that the present system is not satisfactory so far as disposal of these appeals are concerned. The appeal is practically the first opportunity for a party or even third parties affected by pollution, to seek relief. In the view of the Commission, such appeals must lie to an appellate Court having special jurisdiction and must comprise of persons who have or had judicial qualifications or have considerable experience as
11

lawyers. They must also be assisted by experts in environmental science. As stated in the earlier chapters, it is now well recognized in several countries that the appeals must lie to Court manned by persons with judicial knowledge and experience, assisted by experts in various aspects of environmental science.

TWO OTHER STATUTORY ENVIRONMENTAL TRIBUNALS AND DEFECTS THEREIN

National Environment Tribunal Act, 1995: This enactment was made by Parliament, as stated in the preamble, to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of the Tribunal for effective and expeditious disposal of cases arising from such accidents, with a view to giving relief and compensation for damages to person, property and the environment and for matters connected therewith or incidental thereto. Liability under sec. 3 is to be on basis of no fault and under sec. 4 compensation is payable. Under sec. 9(1), the Tribunal shall consist of a Chairperson and such members as Vice- Chairpersons/Judicial Members and Technical members as the Central Government deems fit. It can sit in Benches but each Bench must consist of a Judicial and Technical member. Chairman shall be person who is or has been a Judge of the Supreme Court or High Court, or has at least been Vice- Chairman for 2 years. A Vice-Chairman should be a person (a) who is or has been a Judge of a High Court or was a Secretary to Government of India for at least 2 years or has held any other post in Central or State Government, carrying a scale of pay which is not less than that of a Secretary to Govt. of India or (c) held post of Addl. Secretary in Govt. of India for 5 years and has acquired knowledge of or experience in legal, administrative, scientific or technical aspects of the problems relating to environment, or has at least 3 years experience as a Judicial member or a Technical member; or (3) a Judicial Member must be one who is or has been qualified to be a Judge of a High Court or has been a member of the Indian Legal Service and has held a post in grade I of that service for at least 3 years. A Technical Member is a person who has adequate knowledge of or experience in or capacity to deal with administrative, scientific or technical aspects of the problems relating to environment. No appointment of the Chairperson or Vice-Chairperson can be made without consultation of the Chief Justice of India. No appointment of a Judicial or

12

Technical Member can be made except on the recommendation of a Selection Committee appointed by the Central Government consisting of: (a) Chairperson of the Tribunal. (b) Secretary, Govt. of India, Ministry of Environment and Forests. (c) Secretary, Ministry of Law, Justice and Company Affairs. (d) Director-General, Council of Scientific and Industrial Research. (e) An Environmentalist to be nominated by the Central Government. Term of office of Chairperson, Vice-Chairperson and other Members is 5 years. Appeals lie to Supreme Court on question of law. It may be stated that so far as the National Environmental Tribunal is concerned, since the Act itself has not been notified, the Tribunal has not been constituted in that last eight years. The fact remains that neither the Chairperson, nor Vice-Chairman nor Judicial or Technical Members have been appointed to this Tribunal in the last eight years. Such an important environmental Tribunal envisaged by Parliament has unfortunately not come into being. In fact, if there is tragedy like the Bhopal one, there is now no Tribunal which would grant damages expeditiously. There are other aspects concerning the powers of the above Tribunal. It can only award compensation. It should have been given all powers which a Civil Court enjoys so that it can grant declarations, permanent and mandatory injunctions, possession etc. No doubt, there is provision for the Tribunal sitting in Benches but the scheme does not envisage Court in each State. Further, the Members other than Judicial Members, are not always or necessarily experts in environmental matters. For example, under sec. 10(2) (b), if a Secretary to Government is appointed as Vice-Chairman, he need not possess any experience in environmental matters. It is not clear why only in the case of an Addl. Secretary who could be appointed as Vice- Chairman under sec. 10(2)(c), experience in environmental matters is a condition precedent. Similarly under sec. 10(3)(b), it is not stated that a member of the Indian Legal Service who can be appointed as a Judicial member need be person who has done some work in the field of environment. Again, so far as Technical members under sec. 10(4) are concerned, they can be persons only with administrative or scientific knowledge without any experience in problems relating to environment. If one looks at the consistent pattern in other countries, as pointed out in Chapter IV, the Environmental Court should consist of Judicial Members and Environmental experts. The reason is that if they are expected to exercise normal judicial function of a Civil Court (as now proposed), or as a Court of original and appellate
13

jurisdiction, there is no scope for appointing administrative officials or public servants other than judicial officers/members of the Bar with considerable experience. The Commission is of the view therefore that the Environmental Court must be manned by persons with judicial experience in the High Court and Members of the Bar with at least 20 years standing and have to be assisted by Environmental experts.

The National Environmental Appellate Authority Act In 1997 this Act was, as stated in the preamble, intended to provide for the establishment of a National Environmental Appellate Authority to hear appeals with respect to restriction of areas in which any industries, operation or process (or class of industries, operation or processes) shall be carried out or shall not be carried out subject to safeguards under the Environmental (Protection) Act, 1986. Under sec. 4 of the Act, the Appellate Authority was to consist of a Chairperson, a Vice-Chairperson and such other Members not exceeding three, as the Central Government may deem fit. Under sec. 5, the qualification for appointment as Chairperson is that a person who has been (a) A Judge of the Supreme Court (b) The Chief Justice of High Court A person cannot be appointed as Vice-Chairman unless he has (a) held for two years the post of a Secretary to Govt. of India or any other post under the Central/State Govt. carrying a scale of pay which is not less than that of a Secretary to Govt. of India and (b) had expertise or experience in administrative, legal, management or technical aspects of problems relating to environmental management law or planning and development. It will be noticed that there is some difference between the above provisions and those under the National Environment Tribunal Act, 1995. But here too, the Secretary to Govt. need not necessarily have experience in environmental matters to be appointed as ViceChairman. The term of office is three years. It is understood that the Appellate Tribunal did not have much work in view of the narrow scope of its jurisdiction as per notification issued. It dealt with very few cases. After the term of the first Chairman was over, no appointment has been made. Thus these two National Environmental Tribunals are today unfortunately non-functional. One had only jurisdiction to award compensation and never actually came into existence. The other came into existence but after the term of the first Chairman ended, none has been appointed. It is in the background of this experience with
14

the laws made by Parliament with regard to Environmental Tribunals that we propose to make appropriate proposals in chapter VII for constitution of environmental courts which can simultaneously exercise appellate powers as a Civil Court, and original jurisdiction as exercised by Civil Courts.

ENVIRONMENTAL COURTS TO FOLLOW CERTAIN FUNDAMENTAL PRINCIPLES It is of the opinion that the Environment Court must follow the following rinciples. These principles must be part of the proposed statute dealing with Environmental Courts in order to help in the better functioning.

Polluter Pays Principle: The Polluter Pays Principle was first adopted at international level in the 1972 OECD Council Recommendation on Guiding Principles concerning the International Aspects of Environmental Policies. The 1974 principle experienced revival by OECD Council in 1989 in its Recommendation on the Application of the Polluter Pays Principle to Accidental Pollution, and the principle was not to be restricted to chronic polluter. In 1991, the OECD Council reiterated the Principle in its Recommendations on the Uses of Economic Instruments in Environmental Policy. National laws in Belgium, France, Germany have adverted to this principle. In international law, the principle is incorporated in the 1980 Athens Protocol, the 1992 Helsinki Convention on the Transboundary Effects Industrial Accidents, the 1993 Lugano Convention on Civil Liability for Damage Resulting From Activities Dangerous to Environment. 25 This principle was first stated in the Brundtland Report in 1987. This principle was also adverted to in Indian Council for Enviro-legal Action vs. Union of India.26 In this case this was held that once any activity is inherently dangerous or hazardous dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity.

25

Environmental Principles by Nicolas de Sadeler, Oxford 2002 at pp. 23, 24 1996(3) SCC 212.

26

15

In Vellore Citizens Welfare Forum v. Union of India27 the Supreme Court interpreted the Polluter Pays Principle as the absolute liability for harm to the environment extends not only to compensate the victims of the pollution but also the cost of restoring the environmental degradation. This principle of compensating the victim as well as the environment is laid down in sec. 3 of the National Environment Tribunal Act, 1995. Section 3(1), as already stated, refers to the compensation payable and it will be as per the heads specified in the Schedule. The Schedule contains items (a) to (n) out of which items (a) to (e) relate to the individual affected by the polluter while items (f) to (n) relate to the environmental damage, including that to the flora and fauna.

Hazardous substances Absolute liability Absolute or strict liability is one where fault need not be established. It is no-fault liability. Initiatives such as the 1993 Lugano Convention on Civil Liability for Damage Resulting from Activities Dangerous to Environment; the European Commission Green Paper on environmental liability (1993) and the Chapter on liability for contaminated land of the Swedish Environment Code (2000), suggest that the polluter pays principle calls for the establishment of a strict liability regime. In the Oleum Gas Leak case (M.C. Mehta v. Union of India),28 the Supreme Court laid down that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of persons working in the factory and to those residing in the surrounding areas, owes an absolute and non delegable duty to the community to ensure that no harm results to any one on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without negligence on its part. The larger and more prosperous the enterprise, greater must be the amount of the compensation payable for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise. The principles laid down in Ryland v. Fletcher:29 were modified. It is no longer permissible in the case of injury by use of hazardous substances, to prove merely that the injury was not

27 28

1996(5) SCC 647, (at 659) AIR 1987 SC 1086 LR 3 H.L. 330

29

16

foreseeable or that there was no unnatural use of the land or premises by the factory, as was the position under the law laid down in Rylands vs. Fletcher30. This principle was reiterated in Indian Council for Environ-Legal Action v. Union of India31

Precautionary Principle The precautionary principle had its origin in the mid-1980s from the German Vorsorgeprinzip.32 It then came to be accorded universal recognition in Principle 15 at Rio in the 1992 UN Conference on Environment and Development which resulted in the Declaration on Environment and Development. Similarly, the 1992 Framework Convention on Climatic Change (UNFCC) also refers to it. So does the preamble to the 1992 Convention on Biological Diversity (CBD). Various foreign courts have accepted this principle and has been incorporated in their statutes.33 The Supreme Court of India, in the case of Vellore Citizens Welfare Forum v. Union of India34 referred to the precautionary principle and declared it to be part of the customary law in our country. The Principle is contained in Principle 11 of the Principles laid down in the UN General Assembly Resolution on World Charter for Nature, 1982 and was reiterated in the Rio Conference of 1992 in its Principle No. 15. The same was reiterated in the A.P. Pollution Control Board case.

The Principle of Prevention The Prevention Principle takes care of reckless polluters who would continue polluting the environment in as much as paying for pollution is a small fraction of the benefits they earn from their harmful acts or omissions. Prevention of pollution must therefore take priority over compelling the polluter to cough up. The Trail Smelter35 case was an
30

Ibid 1996(3) SCC 212 (see p 246, para 65) www.umweltlexikon-online.de/fp/ archiv/RUBrechtmanagement/Vorsorgeprinzip.php last accessed on 2

31

32

nov,2011
33

It has been accepted by the European Court of Human Rights and applied by WTO Dispute Resolution Bodies, the International Tribunal for the Law of the Sea, the European Community Law. National legislations in the EC Member States (Germany, France, Belgium, Sweden) have adopted it. It is applied in UK because of Art 174 (2) of EC Treaty. It is applied also by US Courts and in Australia.
34

1996(5) SCC 647 5 UNRIAA 39 (1941)

35

17

international award which directed Canada to install protective measures to stop pollution in the neighbouring countries arising out of a foundry. This was treated as a transboundary obligation under international law. This principle was engrafted in Principle 21 of the 1972 Stockholm Declaration on Human Environment which stressed the responsibility (of States) to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction. This was reiterated in Principle 2 of the Rio Declaration. Environment Impact Assessment is the crucial procedure which seeks toward off prevention. This is reiterated in Principle 17 of the Rio Declaration.

Principle of New Burden of Proof: The UN General Assembly Resolution of 1982 on World Charter for Nature established this principle. EC Law also demonstrates the shift in the burden in the case of use of drugs, pesticides, food products, additives, food stuffs etc. ECs new hazardous wastes lists 200 categories of listed wastes. In US, though the Supreme Court in Industrial Union Department AFL CIU v. American Petroleum Institute36 put the initial burden on the regulator, several American statutes have shifted the burden of proof.74 The WTO Appellate body has also applied this principle. Environmental Impact Assessment is intended to reduce the uncertainties attached to potential impacts of a project. In the Vellore Case37, Kuldip Singh J observed as follows: The onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign. In A.P. Pollution Control Board case: 38it was explained that the precautionary principle has led to the new burden of proof principle. In environmental cases where proof of absence of injurious effect of the action is in question, the burden lies on those who want to change the status quo. This is often termed as a reversal of the burden of proof, because otherwise, in environmental cases, those opposing the change could be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less
36

448 US at 632-635 (1980) 1996(5) SC 647 p 658 para 11 1999 (2) SCC 718 (at p 734)

37

38

18

polluted state should not carry the burden and the party who wants to alter it, must bear this burden.

Sustainable Development: In the international arena Sustainable Development came to be known as a concept for the first time in the Stockholm Declaration of 1972. Thereafter in 1987 the concept was given definite shape by the World Commission on Environment and development in the report called Our Common Future. The Commission was chaired by the then PM of Norway Mrs. G.H. Brundtland and as such the report is popularly known as Brundtland Report. In 1991 the World Conservation Union, United Nations Environment Programme and World Wide Fund for Nature, jointly came out with a document called Caring for the Earth which is a strategy for sustainable living. Finally came the Erath Summit held in June 1992 at Rio which saw the largest gathering of world leaders ever in the history deliberating and chalking out a blue print for the survival of the planet. During the two decades from Stockholm to Rio Sustainable Development has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-systems. Among the principles that form part of the concept of sustainable development, two important principles are eradication of poverty and financial assistance to the developing countries. It is in the hands of humanity to make development sustainable, that is to say, seek to meet the needs and aspirations of the present without compromising the ability of future generations to meet their own. The concept of sustainable development implies limits -not absolute limits, but limitations that the present state of technology or social organisation and the capacity of the biosphere to absorb the effects of human activities impose on the resources of the environment-, but both technology and social organisation can be organised and improved so that they will open the way to a new era of economic growth. The Commission believes that poverty is no longer inevitable. Poverty is not only a malaise in itself. Sustainable development demands that the basic needs of all are satisfied and that the opportunity of fulfilling their expectations of a better life is extended to all. A world where poverty is endemic will always be susceptible to suffering an ecological or any other kind of catastrophe.39
39

Brundtland Report, Our Common Future, The World Commission for the Environment and Development, Aianza Publications 1988. Madrid (page 29)

19

Public trust doctrine: The public trust doctrine was referred to by the Supreme Court in M.C. Mehta v. Kamal Nath40. The doctrine extends to natural resources such as rivers, forests, sea shores, air etc., for the purpose of protecting the eco-system. The State is holding the natural resources as a trustee and cannot commit breach of trust. In the above case, the States order for grant of a lease to a motel located on the bank of the river Beas which resulted in the Motel interfering with the natural flow of the water, was quashed and the public company which got the lease was directed to compensate the cost of restitution of environment and ecology in the area. Inter-generational equity: Principles 1 and 2 of the 1972 Stockholm Declaration refer to this concept. Principle 1 states that Man bears solemn responsibility to protect and improve the environment for the present and future generations. Principle 2 states that the national resources of the Earth must be safeguarded for the benefit of the present and future generations through careful planning or management, as appropriate. Principle 3 of the Rio Declaration, 1992 also states that the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. The Philippines Supreme Court entertained a case by a group of citizens representing the future generations for preservation of the ecology.41 In this case the then President of the Philippines issued an executive order in 1987 in that behalf which specifically referred to the right so conferred not only for the present generation but for future generation as well. In Minors Oposa, a group of Filipino minors named OPASA, joined by their respective parents, representing their own generation as well as generations yet unborn, urged the Supreme Court to enforce their and their unborn successors constitutional right to a balanced and healthful ecology guaranteed under the Philippine Constitution and sought cancellation of all existing logging permits issued by the Dept. of Environment and

40

1997 (1) SCC 388 See Minors Oposa v. Secretary of the Dept. of Environment and Natural Resources (DENR) (1994) 33

41

ILM 173 Also generally see Right of Future Generations by K.I. Vibhuti Vol. 21 Academy Law Review p. 219-235.

20

Natural Resources (DENR) to different companies on the basis of the Timber Licence Agreements (TLAs) and for restraining the DENR from accepting, processing, reviewing or approving the TLAs. The Supreme Court allowed the applicants to file the case and emphasized the duty of the State as parens patriae. The Court observed that the petitioners personality to sue on behalf of the succeeding generations can only be based on the concept of intergenerational responsibility. Hence concluding in this chapter these and other principles must be required to be applied by the Environment Courts and provision must be made therefor in the statute enabling the formation of the Environmental Courts.

21

RECOMMENDATIONS On the basis of above discussion in, the following recommendations seem to arise: 1. In view of the involvement of complex scientific and specialized issues relating to environment, there is a need to have separate Environment Courts manned only by the persons having judicial or legal experience and assisted by persons having scientific qualification and experience in the field of environment. 2. In order to achieve the objectives of accessible, quick and speedy justice, these Environment Courts should be established and constituted by the Union Government in each State. However, in case of smaller States and Union Territories, one court for more than one State or Union Territory may serve the purpose. 3. (a) The proposed Environment Court should consist of a Chairperson and at least two other members. Chairman and other members should either be a retired Judge of Supreme Court or High Court, or having at least 20 years experience of practicing as an advocate in any High Court. The term of the Chairperson and members shall be 5 years. (b) Each Environment Court should be assisted by at least three scientific or technical experts known as Commissioners. However, their role will be advisory only. 4.(a) The proposed Environment Court shall have original jurisdiction in the civil cases where a substantial question relating to environment including enforcement of any legal or constitutional right relating to environment is involved. (b) The jurisdiction of civil courts is not ousted. (c) The proposed Environment Court shall also have appellate jurisdiction in respect of appeals under: (i) The Environment (Protection) Act, 1986 and rules made thereunder; (ii)The Water (Prevention and Control of Pollution) Act, 1974 and rules made thereunder: (iii) The Air (Prevention and Control of Pollution) Act, 1981 and rules made thereunder; (iv)The Public Liability Insurance Act, 1991. The Central and State Governments may also notify that appeal under any other environment related enactment or rules made thereunder, may also lie to the proposed Environment Court. 5.(a) The proposed Court should not be bound to follow the procedure prescribed under the Code of Civil Procedure, 1908, but will be guided by the principles of natural justice.
22

The Court should also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872. (b) The proposed Court shall have all powers of civil court including power to punish for contempt. (c) The minimum quorum for hearing a case, shall be two members including the Chairperson. At least one Commissioner should also remain present during the hearing of a case. The proposed Court can pass all kinds of orders, final or interlocutory. It can also award damages, compensation and can also grant injunctions (permanent, temporary and mandatory). (d) The proposed Environment Court shall follow the principle of strict liability in case of hazardous substance, polluter pays principle, precautionary principle, preventive principle, doctrine of public trust, Intergenerational equity and sustainable development. (e) The locus standi before the proposed Environment Court in original jurisdiction shall be as wide as it is today before High Court/Supreme Court in the writ jurisdiction in environmental matters. (f) The proposed Environment Court shall also have power to frame schemes relating to environmental issues, monitor them and modify the schemes. 6. The proposed enactment for establishment of these Environment Courts should also contain other ancillary and miscellaneous provisions which are necessary, for example provisions regarding other staff, funds, place of sitting etc. 7(a) In view of the appellate powers of the proposed Environment Court, provisions relating to appeals contained in: (i) Environment (Protection) Act, 1986 and rules made thereunder; (ii)The Air (Protection and Control of Pollution) Act, 1981 and rules made thereunder; (iii) The Public Liability Insurance Act, 1991 are required to be suitably amended. (b) The proposed enactment should also contain a provision, namely, Notwithstanding anything contained in sec. 28 of the Water (Prevention and Control of Pollution) Act, 1974, any person aggrieved by the order passed by the State Board under sec. 25, 26 or 27 may prefer appeal to the Environment Court. 8. The National Environment Tribunal Act, 1995 and The National Environmental Appellate Authority Act, 1997 may be repealed and provisions regarding functions and powers of the Tribunal and the Appellate Authority contained in those Acts be suitably
23

transferred in the proposed enactment for establishment of the Environment Court. 9. Appeal against the orders of the proposed Environment Court, shall lie before the Supreme Court on the question of facts and law. 10. The powers of High Courts under Arts. 226, 227 of the Constitution of India and of the Supreme Court under Art. 32 of the Constitution of India shall not be ousted.

24

BIBLIOGRAPHY: Environmental Law & Policy in India; II Edition; cases, materials and statutes; Shyam Divan Arnim Rosencrantz; Oxford India Environmental Law; P. S. Jaswal; 2007 Publication; Allahbad Law Agency Environmental Law; S. C. Shastri; II Edition; 2005 Edition; Eastern Book Company Soli.J.Sorabjee(Ed),Law and Justice An anthology, Universal Law Publishing company,New Delhi(2003) Environmental Enforcement: the need for a Specialist Court Journal of Planning & enforcement, 1992 Brundtland Report, Our Common Future, The World Commission for the Environment & Development, Aianza Publications,1988 Royal Commission on Environmental Pollution 23rd Report on Environmental Planning, March,2002 www.justice.govt.nz/environment www.indlawnews.com www.planningcommission.nic.in/plans/annualplan/ap02_03/ap23_ch9.pdf

25